Towards Voluntaryism (Part 32)
3.11.4. Citizen's Arrest Laws IV: New Mexico to South Carolina
Towards Voluntaryism (Part 32)
Citizen's Arrest Laws IV: New Mexico to South Carolina
31. New Mexico
Universal Citation: NM Stat § 30-16-23 (2017)
30-16-23. Reasonable detention.
If any law enforcement officer, special officer or merchant has probable cause for believing that a person has willfully taken possession of any merchandise with the intention of converting it without paying for it, or has willfully concealed merchandise, and that he can recover the merchandise by detaining the person or taking him into custody, the law enforcement officer, special officer or merchant may, for the purpose of attempting to affect [effect] a recovery of the merchandise, take the person into custody and detain him in a reasonable manner for a reasonable time. Such taking into custody or detention shall not subject the officer or merchant to any criminal or civil liability.
Any law enforcement officer may arrest without warrant any person he has probable cause for believing has committed the crime of shoplifting. Any merchant who causes such an arrest shall not be criminally or civilly liable if he has probable cause for believing the person so arrested has committed the crime of shoplifting.
Universal Citation: NM Stat § 31-4-14 (2017)
31-4-14. Arrest without a warrant.
The arrest of a person may be lawfully made also by any peace officer or a private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section [31-4-13 NMSA 1978]; and thereafter his answer shall be heard as if he had been arrested on a warrant.
Alan Malott: "Citizen's Arrest Could Have Legal Ramifications" in Alburquergue Journal. 24 Jan 2011 Alan M. Malott is a judge of the 2nd Judicial District Court (2011). Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist.
"...At Common Law, a private citizen had the power to arrest another for conduct which was either a breach of the peace, or a felony-level offense, if committed in the arrestor's presence. As long as the arrestor did not use excessive force he was immune from legal claims for damages from the incident such as assault, battery or false imprisonment. In more recent years, some states have enacted specific statutes outlining the parameters of a private citizen's right to interfere with the actions of another. New Mexico has no statute on citizen's arrest. Instead, our courts have continued to recognize the Common Law concept, ruling that a private citizen can detain a fellow private citizen when there is at least probable cause to believe that the fellow citizen has committed a felony-level crime or a breach of the peace in his presence. Please note that there are specific statutes for security guards which I am not addressing today.
"In New Mexico, so long as the arrestor had a reasonable subjective belief that such a crime had been committed, the privilege could apply even if the belief was factually incorrect or the arrestee was later found innocent of the charge. The arrestor must use no more than reasonably necessary force in effecting the detention, however, or he may be liable for either civil damages, criminal consequences or both. Conduct which violates our criminal statutes, such as assault, battery and false imprisonment, may also result in liability for civil damages under tort law or personal injury law. Crimes are prosecuted by the state while damages for torts are brought by the individual...
"New Mexico does not allow a citizen's arrest for an ordinary misdemeanor..."
32. New York
S 140.30 Arrest without a warrant; by any person; when and where authorized.
- Subject to the provisions of subdivision two, any person may arrest another person (a) for a felony when the latter has in fact committed such felony, and (b) for any offense when the latter has in fact committed such offense in his presence.
- Such an arrest, if for a felony, may be made anywhere in the state. If the arrest is for an offense other than a felony, it may be made only in the county in which such offense was committed.
- A person may arrest another person for an offense pursuant to section 140.30 at any hour of any day or night.
- Such person must inform the person whom he is arresting of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.
- In order to effect such an arrest, such person may use such physical force as is justifiable pursuant to subdivision four of section 35.30 of the penal law.
A person making an arrest pursuant to section 140.30 must without unnecessary delay deliver or attempt to deliver the person arrested to the custody of an appropriate police officer, as defined in subdivision five. For such purpose, he may solicit the aid of any police officer and the latter, if he is not himself an appropriate police officer, must assist in delivering the arrested person to an appropriate officer. If the arrest is for a felony, the appropriate police officer must, upon receiving custody of the arrested person, perform all recording, fingerprinting and other preliminary police duties required in the particular case. In any case, the appropriate police officer, upon receiving custody of the arrested person, except as otherwise provided in subdivisions two and three, must bring him, on behalf of the arresting person, before an appropriate local criminal court, as defined in subdivision five, and the arresting person must without unnecessary delay file an appropriate accusatory instrument with such court.
If (a) the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law and (b) owing to unavailability of a local criminal court the appropriate police officer having custody of the arrested person is unable to bring him before such a court with reasonable promptness, the arrested person must be dealt with in the manner prescribed in subdivision three of section 140.20, as if he had been arrested by a police officer.
If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, the arrested person need not be brought before a local criminal court, as provided in subdivision one, and the procedure may instead be as follows:
(a) An appropriate police officer may issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in subdivision two of section 150.20; or
(b) The desk officer in charge at the appropriate police officer's station, county jail or police headquarters, or any of his superior officers, may, in such place, fix pre-arraignment bail and, upon deposit thereof, issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in section 150.30.Notwithstanding any other provision of this section, a police officer is not required to take an arrested person into custody or to take any other action prescribed in this section on behalf of the arresting person if he has reasonable cause to believe that the arrested person did not commit the alleged offense or that the arrest was otherwise unauthorized.
If a police officer takes an arrested juvenile offender into custody, the police officer shall immediately notify the parent or other person legally responsible for his care or the person with whom he is domiciled, that the juvenile offender has been arrested, and the location of the facility where he is being detained.
As used in this section: (a) An "appropriate police officer" means one who would himself be authorized to make the arrest in question as a police officer pursuant to section 140.10; (b) An "appropriate local criminal court" means one with which an accusatory instrument charging the offense in question may properly be filed pursuant to the provisions of section 100.55.
33. North Carolina
Important to note in North Carolina that a 'citizen's arrest' is not a codified legal action, however a 'detention' is. Thus do not announced a citizen's arrest, rather that one is detaining a law-breaker for arrest by a law enforcement officer.
Universal Citation: NC Gen Stat § 15A-404 (2016)
15A-404. Detention of offenders by private persons.
(a) No Arrest; Detention Permitted. - No private person may arrest another person except as provided in G.S. 15A-405. A private person may detain another person as provided in this section.
(b) When Detention Permitted. - A private person may detain another person when he has probable cause to believe that the person detained has committed in his presence:
(1) A felony,
(2) A breach of the peace,
(3) A crime involving physical injury to another person, or
(4) A crime involving theft or destruction of property.
(c) Manner of Detention. - The detention must be in a reasonable manner considering the offense involved and the circumstances of the detention.
(d) Period of Detention. - The detention may be no longer than the time required for the earliest of the following:
(1) The determination that no offense has been committed.
(2) Surrender of the person detained to a law-enforcement officer as provided in subsection (e).
(e) Surrender to Officer. - A private person who detains another must immediately notify a law-enforcement officer and must, unless he releases the person earlier as required by subsection (d), surrender the person detained to the law-enforcement officer. (1973, c. 1286, s. 1.)
Universal Citation: NC Gen Stat § 15-43 (2016)
15-43. House broken open to prevent felony.
All persons are authorized to break open and enter a house to prevent a felony about to be committed therein. (1868-9, c. 178, subch. 1, s. 4; Code, s. 1127; Rev., s. 3179; C.S., s. 4545.)
According to the Solutions Institute "North Carolina is also the only state to allow any person to get a warrant for arrest based upon probable cause and oath or affirmation, providing another avenue to bring corrupt officials to justice." The following provides more detail than the that provided by justia.com, if this is because the law has changed is opaque. Relevant statute provided here, paragraphs in bold that are relevant to citizen application for warrant. In essence, any citizen may submit a written affidavit with evidence of a crime in order to cause an arrest warrant to be issued:
§ 15A-304. Warrant for arrest.
(a) Definition. - A warrant for arrest consists of a statement of the crime of which the person to be arrested is accused, and an order directing that the person so accused be arrested and held to answer to the charges made against him. It is based upon a showing of probable cause supported by oath or affirmation.
(b) When Issued. -
(1) A warrant for arrest may be issued, instead of or subsequent to a criminal summons, when it appears to the judicial official that the person named should be taken into custody.
(2) Upon a finding of probable cause pursuant to subsection (d) of this section, the issuing official shall issue a criminal summons instead of a warrant, unless the official finds that the accused should be taken into custody. Circumstances to be considered in determining whether the accused should be taken into custody may include, but are not limited to, any of the following:
a. The accused has a history of failure to appear before the court as required, or there is other evidence that the person is unlikely to appear in response to a summons for the current proceeding.
b. There is evidence that the accused is likely to escape or otherwise flee the State in order to avoid prosecution for the offense alleged.
c. There is evidence of imminent danger of harm to persons or property if the accused is not taken into custody.
d. The location of the accused is not readily discoverable, such that a criminal summons would be unlikely to be served before any court date assigned at the time of issue.
e. A relevant statute provides that arrest is mandatory for an offense charged.
f. The seriousness of the offense. However, the fact that the offense charged is a felony shall not, by itself, constitute grounds for the issuance of a warrant.
(3) Notwithstanding subsection (d) of this section, an official shall only find probable cause based solely on information provided by a person who is not a sworn law enforcement officer if the information is provided by written affidavit. If the finding of probable cause pursuant to subsection (d) of this section is based solely upon the written affidavit of a person who is not a sworn law enforcement officer, the issuing official shall not issue a warrant for arrest and instead shall issue a criminal summons, unless one of the following circumstances exists:
a. There is corroborating testimony of the facts establishing probable cause from a sworn law enforcement officer or at least one disinterested witness.
b. The official finds that obtaining investigation of the alleged offense by a law enforcement agency would constitute a substantial burden for the complainant.
c. The official finds substantial evidence of one or more of the grounds listed in subdivision (2) of this subsection.
(c) Statement of the Crime. - The warrant must contain a statement of the crime of which the person to be arrested is accused. No warrant for arrest, nor any arrest made pursuant thereto, is invalid because of any technicality of pleading if the statement is sufficient to identify the crime.
(d) Showing of Probable Cause. - A judicial official may issue a warrant for arrest only when he is supplied with sufficient information, supported by oath or affirmation, to make an independent judgment that there is probable cause to believe that a crime has been committed and that the person to be arrested committed it. The information must be shown by one or more of the following:
(1) Affidavit;
(2) Oral testimony under oath or affirmation before the issuing official; or
(3) Oral testimony under oath or affirmation presented by a sworn law enforcement officer to the issuing official by means of an audio and video transmission in which both parties can see and hear each other. Prior to the use of audio and video transmission pursuant to this subdivision, the procedures and type of equipment for audio and video transmission shall be submitted to the Administrative Office of the Courts by the senior regular resident superior court judge and the chief district court judge for a judicial district or set of districts and approved by the Administrative Office of the Courts.
If the information is insufficient to show probable cause, the warrant may not be issued. A judicial official shall not refuse to issue a warrant for the arrest of a person solely because a prior warrant has been issued for the arrest of another person involved in the same matter.
(e) Order for Arrest. - The order for arrest must direct that a law-enforcement officer take the defendant into custody and bring him without unnecessary delay before a judicial official to answer to the charges made against him.
(f) Who May Issue. - A warrant for arrest, valid throughout the State, may be issued by:
(1) A Justice of the Supreme Court.
(2) A judge of the Court of Appeals.
(3) A judge of the superior court.
(4) A judge of the district court, as provided in G.S. 7A-291.
(5) A clerk, as provided in G.S. 7A-180 and 7A-181.
(6) A magistrate, as provided in G.S. 7A-273. (1868-9, c. 178, subch. 3, ss. 1-3; Code, ss. 1132-1134; 1901, c. 668; Rev., ss. 3156-3158; C.S., ss. 4522-4524; 1955, c. 332; 1969, c. 44, s. 27; c. 1062, s. 1; 1973, c. 1286, s. 1; 1997-268, s. 2; 2004-186, s. 15.1; 2017-176, s. 5(a).)
34. North Dakota
2017 North Dakota Century Code Title 29 Judicial Procedure, Criminal Chapter 29-06 Arrest see also nd.gov
29-06-18. Arrest by bystander.
An officer may take before a magistrate a person who, while engaged in a breach of the peace, is arrested by a bystander and delivered to the officer
29 - 06 - 20. When private person may arrest.
A private person may arrest another:
- For a public offense committed or attempted in the arresting person's presence.
- When the person arrested has committed a felony, although not in the arresting person's presence.
- When a felony has been in fact committed, and the arresting person has reasonable grounds to believe the person arrested to have committed it.
29-06-21. Must inform person of cause of arrest.
A private person making an arrest must inform the person to be arrested of the intention to arrest the person, and of the cause of the arrest, unless:
- The person to be arrested then is engaged in the commission of an offense;
- Such person is pursued immediately after its commission or after an escape;
- Such person flees or forcibly resists before the person making the arrest has opportunity to inform the person; or
- The giving of such information will imperil the arrest.
29-06-22. When a private person may break into a building.
A private person, in order to make an arrest when a felony was committed in the arresting person's presence, as authorized in section 29-06-20, if the person is refused admittance after the person has announced the person's purpose, may break open a door or window of any building in which the person to be arrested is, or is reasonably believed to be.
29-06-23. Arrested by private person -Duty- Taken before magistrate.
A private person who has arrested another for the commission of a public offense, without unnecessary delay, shall take the person before a magistrate or deliver the person to a peace officer.
29-06-24. Offensive weapons taken - Delivery to magistrate.
Any person making a lawful arrest shall take from the person arrested all offensive weapons which the person arrested may have and shall deliver them to the magistrate before whom the person arrested is taken.
29-06-25. Procedure against person arrested without warrant.
When an arrest is made by a peace officer or a private person without a warrant, the person arrested without unnecessary delay must be taken:
- Before the nearest or most accessible magistrate in the county where the arrest is made; or
- If there is no magistrate in said county qualified to act, then before the nearest or most accessible magistrate authorized to act for the county where the arrest is made. A complaint stating the charge against the person arrested must be made before such magistrate, as is provided in rule 5 of the North Dakota Rules of Criminal Procedure.
29-06-26. Who may break door to liberate self.
Any person who has lawfully entered a house for the purpose of making an arrest, or who while therein makes an arrest, may break open the door or window thereof, if detained therein, when necessary to exit the house, and an officer may do the same when necessary for the purpose of liberating a person who, acting in the officer's aid, lawfully enters for the purpose of making an arrest and is detained therein.
35. Ohio
Universal Citation: Ohio Rev Code § 2935.04 (2017)
When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.
Universal Citation: Ohio Rev Code § 2935.06 (2017)
A private person who has made an arrest pursuant to section 2935.04 of the Revised Code or detention pursuant to section 2935.041 of the Revised Code shall forthwith take the person arrested before the most convenient judge or clerk of a court of record or before a magistrate, or deliver such person to an officer authorized to execute criminal warrants who shall, without unnecessary delay, take such person before the court or magistrate having jurisdiction of the offense. The officer may, but if he does not, the private person shall file or cause to be filed in such court or before such magistrate an affidavit stating the offense for which the person was arrested.
Universal Citation: Ohio Rev Code § 2935.07 (2017)
When an arrest is made without a warrant by an officer, he shall inform the person arrested of such officer's authority to make the arrest and the cause of the arrest.
When an arrest is made by a private person, he shall, before making the arrest, inform the person to be arrested of the intention to arrest him and the cause of the arrest.
When a person is engaged in the commission of a criminal offense, it is not necessary to inform him of the cause of his arrest.
Universal Citation: Ohio Rev Code § 2935.08 (2017)
Upon the filing of an affidavit or complaint as provided in sections 2935.05 or 2935.06 of the Revised Code such judge, clerk, or magistrate shall forthwith issue a warrant to the peace officer making the arrest, or if made by a private person, to the most convenient peace officer who shall receive custody of the person arrested. All further detention and further proceedings shall be pursuant to such affidavit or complaint and warrant.
36. Oklahoma
2017 Oklahoma Statutes Title 22. Criminal Procedure §22-187. Arrest made by whom.
Universal Citation: 22 OK Stat § 22-187 (2017)
An arrest may be either:
- By a peace officer, under warrant,
- By a peace officer without a warrant; or,
- By a private person.
Universal Citation: 22 OK Stat § 22-200 (2017)
He may take before a magistrate, a person, who being engaged in a breach of the peace, is arrested by a bystander and delivered to him.
2017 Oklahoma Statutes Title 22. Criminal Procedure §22-202. Arrest by private person.
Universal Citation: 22 OK Stat § 22-202 (2017)
A private person may arrest another:
- For a public offense committed or attempted in his presence.
- When the person arrested has committed a felony although not in his presence.
- When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.
Universal Citation: 22 OK Stat § 22-203 (2017)
He must, before making the arrest, inform the person to be arrested of the cause thereof, and require him to submit, except when he is in actual commission of the offense or when he is arrested on pursuit immediately after its commission.
Universal Citation: 22 OK Stat § 22-204 (2017)
If the person to be arrested has committed a felony, and a private person, after notice of the intention to make the arrest, be refused admittance, the private person may break open an outer or inner door or window of the dwelling house of the person to be arrested, for the purpose of making the arrest.
Universal Citation: 22 OK Stat § 22-205 (2017)
A private person who has arrested another for the commission of a public offense, must, without unnecessary delay, take him before a magistrate or deliver him to a peace officer.
2017 Oklahoma Statutes Title 22. Criminal Procedure §22-206. Disarming person arrested.
Universal Citation: 22 OK Stat § 22-206 (2017)
Any person making an arrest must take from the person arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate before whom he is taken.
37. Oregon
Universal Citation: OR Rev Stat § 133.220 (2017)
An arrest may be effected by:
(1) A peace officer under a warrant;
(2) A peace officer without a warrant;
(3) A parole and probation officer under a warrant as provided in ORS 133.239;
(4) A parole and probation officer without a warrant for violations of conditions of probation, parole or post-prison supervision;
(5) A private person; or
(6) A federal officer. [Amended by 1981 c.808 §2; 2005 c.668 §4]
2017 Oregon Revised Statutes Volume : 04 - Criminal Procedure, Crimes Chapter 133 - Arrest and Related Procedures; Search and Seizure; Extradition Section 133.225 - Arrest by private person. See also oregonlaws.org
Universal Citation: OR Rev Stat § 133.225 (2017)
(1) A private person may arrest another person for any crime committed in the presence of the private person if the private person has probable cause to believe the arrested person committed the crime. A private person making such an arrest shall, without unnecessary delay, take the arrested person before a magistrate or deliver the arrested person to a peace officer.
(2) In order to make the arrest a private person may use physical force as is justifiable under ORS 161.255. [1973 c.836 §74]
Universal Citation: OR Rev Stat § 161.255 (2017)
(1) Except as provided in subsection (2) of this section, a private person acting on the person’s own account is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to make an arrest or to prevent the escape from custody of an arrested person whom the person has arrested under ORS 133.225.
(2) A private person acting under the circumstances prescribed in subsection (1) of this section is justified in using deadly physical force only when the person reasonably believes it necessary for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of deadly physical force. [1971 c.743 §31; 1973 c.836 §339]
38. Pennsylvania
2017 Pennsylvania Consolidated Statutes Title 18 - CRIMES AND OFFENSES Chapter 5 - General Principles of Justification Section 508 - Use of force in law enforcement only relevant section:
Universal Citation: 18 PA Cons Stat § 508 (2017)
§ 508. Use of force in law enforcement.
(a) Peace officer's use of force in making arrest.--
...
(b) Private person's use of force in making arrest.--
(1) A private person who makes, or assists another private person in making a lawful arrest is justified in the use of any force which he would be justified in using if he were summoned or directed by a peace officer to make such arrest, except that he is justified in the use of deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or another.
(2) A private person who is summoned or directed by a peace officer to assist in making an arrest which is unlawful, is justified in the use of any force which he would be justified in using if the arrest were lawful, unless he knows that the arrest is unlawful.
(3) A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a peace officer in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, if:
(i) he believes the arrest is lawful; and
(ii) the arrest would be lawful if the facts were as he believes them to be.
§132:381. When persons other than poilice may make warrantless arrest. Solutions Institute was also provided with an elaboration of from Standard Pennsylvania Practice 2d §132:381 - Criminal Procedure (source as above), that states:
"A private person is privileged to arrest a person without a warrant where a felony has actually been committed and the private person has reasonable grounds to suspect that the person he or she arrests committed the felony. In addition, a private person in fresh pursuit of one who has committed a felony may make an arrest without a warrant and may make a citizen's arrest for a breach of the peace that is personally observed by the arrestor."
39. Rhode Island
Universal Citation: RI Gen L § 12-9-17 (2017)
§ 12-9-17. Arrest without warrant.
The arrest of a person may also be lawfully made by any peace officer or a private person without a warrant, upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested, the accused must be taken before a judge with all practicable speed, and complaint must be made against him or her under oath, setting forth the ground for the arrest as in § 12-9-16; and thereafter after that his or her answer shall be heard as if he or she had been arrested on a warrant.
40. South Carolina
2017 South Carolina Code of Laws Title 17 - Criminal Procedures CHAPTER 13 - ARREST, PROCESS, SEARCHES AND SEIZURES Section 17-13-10. Circumstances when any person may arrest a felon or thief. See also scstatehouse
Universal Citation: SC Code § 17-13-10 (2017)
Upon (a) view of a felony committed, (b) certain information that a felony has been committed or (c) view of a larceny committed, any person may arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law.
Universal Citation: SC Code § 17-13-20 (2017)
A citizen may arrest a person in the nighttime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken, when the person:
(a) has committed a felony;
(b) has entered a dwelling house without express or implied permission;
(c) has broken or is breaking into an outhouse with a view to plunder;
(d) has in his possession stolen property; or
(e) being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed.
....
Next Towards Voluntaryism (Part 33) Citizen's Arrest: South Dakota to Wyoming
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